O.H. and G.H. v. Germany

Last Updated on April 4, 2023 by LawEuro

Legal summary
April 2023

O.H. and G.H. v. Germany – 53568/18

Judgment 4.4.2023 [Section IV]

Article 8
Article 8-1
Respect for private life

Legal impossibility for transgender parent’s current gender, disconnected from biological reality, to be indicated on birth certificate of child conceived after gender reclassification: no violation

[This summary also covers the judgment in the case of A.H. and Others v. Germany, 7246/20, 4 April 2023]

Facts – In the case of O.H. and G.H., the first applicant was born female. After obtaining legal recognition of gender change he gave birth to the second applicant, his son, conceived through a sperm donation. On the child’s birth certificate he was recorded as mother.

In the case of A.H. and Others the first applicant was born male and obtained legal recognition of gender change to female. The second applicant, her girlfriend, gave birth to the third applicant, their son, who had been conceived with the first applicant’s sperm. The first applicant was recorded on the birth certificate as the child’s father.

In accordance with national law, the civil registration authorities refused, in spite of the gender changes recognised by the courts before the children were conceived, to record the first applicant as father of the second (in O.H. and G.H.) and the first applicant as second mother of the third applicant (in A.H. and Others), on the ground that the person who gave birth to a child must be recorded as mother. Appeals against these decisions were unsuccessful.

Law – Article 8:

1) Applicability – Concerning the complaints of the transgender parents based on their right to respect for their private life, that right included a right to self-determination, freedom to define one’s gender identity being one of its fundamental elements. It further encompassed the right to legal recognition of gender identity, also meaning that a transgender person should be protected from involuntary disclosure of that identity. Concerning their children and partner, the right to respect for private life included the disclosure or non-disclosure of certain aspects of their private life.

To the extent that the applicants in both cases also relied on the right to respect for family life, they were living together as parents and children and their parenthood had not been called into questioned by the German authorities.

Conclusion: Article 8 applicable under its “private life” limb.

2) Merits –

a) Whether the case concerned a positive obligation or an interference – The main question to be addressed in both cases was whether the regulatory framework in place and the decisions taken in that connection in relation to the applicants showed that the State had fulfilled its positive obligations to ensure respect for their private life. The general principles applicable to the assessment of the State’s positive obligations had been summarised in the Hämäläinen v. Finland [GC] judgment, together with the relevant factors: the importance of the interest at stake for an applicant and whether “fundamental values” or “essential aspects” of private life were in issue, together with the impact on an applicant of a discordance between the social reality and the law, and the impact of the alleged positive obligation on the State, depending on its nature, namely whether it was narrow and precise or broad and indeterminate.

b) The State’s margin of appreciation – As to the transgender parents, the nub of their complaint was not the entry in an official document concerning them personally but information on the birth certificates relating to others, i.e. their children. As far as the children were concerned, the right to self-determination was not called into question by the possible disclosure of a fact concerning their own gender identities but by the disclosure of the transgender identity of one of their parents. As far as the right of children to know their origins was concerned, such right was capable of limiting the right of transgender parents and their partners. The margin of appreciation was not therefore narrowed by the right relied upon by the applicants.

There was no consensus among European States as to how to indicate in the civil registration records concerning a child that one of the persons having parental status was transgender. Indeed, only five member States of the Council of Europe had made provision in their registers for a recognised gender, while the majority of the States continued to designate the person who gave birth to a child as mother and to allow the person who had contributed the sperm to acknowledge paternity in respect of the child. This lack of consensus reflected the fact that gender change combined with parenthood raised sensitive ethical issues, thus confirming that States should in principle be afforded a wide margin of appreciation.

The German authorities had been called upon to weigh up a number of private and public interests against several competing rights. First, the rights of transgender parents and their partners; next, the fundamental rights and interests of the respective children, namely their right to know their origins, their interest in a stable legal attachment to their parents, and the right to receive care and education from both parents (O.H. and G.H.); lastly, the public interest, which lay in the coherence of the legal system and the accuracy and completeness of civil registration records, which had particular evidential value. The latter aspect also called for a wide margin of appreciation.

Therefore, taking account of all those circumstances, the German authorities had enjoyed a wide margin of appreciation in the present case.

(c) The applicants’ right to respect for their private life – Unlike the applicants in other cases examined by the Court, the transgender parents had not complained of a lack of recognition of their gender change in the official documents concerning themselves, but of the authorities’ refusal to indicate their current gender and forenames in an official document concerning their respective sons.

According to the intention of the German legislature, the former sex and former forename of the transgender parent had to be indicated not only in the case of a birth which had taken place before the recognition of the parent’s gender change had become final, but also where, as in both of the present cases, the conception or birth of the child postdated the gender reclassification. The Law on the name and sex of transsexuals had been expressly amended to that effect on the ground that, on the basis of medical knowledge at it stood, it was not to be excluded that persons presumed to be incapable of reproduction might nevertheless conceive or give birth to a child after gender reassignment surgery. The amendment had been made possible, inter alia, after the Federal Constitutional Court, in 2011, had declared that the requirement for a person seeking gender change recognition to undergo surgery and the condition of irreversible sterility were contrary to the Basic Law.

In the present cases, the Federal Court of Justice had noted that motherhood and fatherhood, as legal categories, were not interchangeable and were distinguished by both the preconditions for their justification and the legal consequences that followed.

As regards the children’s rights, the Federal Court of Justice’s findings in both cases had contained general considerations because the domestic courts could not take into account only those interests that had been relied upon by the parent(s), but had to give priority to the best interests of the child and also to consider the child’s possible future interests and the interests of any children in a comparable situation to whom the legislative provisions governing the case before them would also apply.

In terms of determining what information should be entered in the register of births, that is to say at a time when the child’s welfare could not be examined on an individual basis in view of its age, the Federal Court of Justice had taken the view that the children’s interests coincided to a certain extent with the general interest in ensuring the reliability and consistency of civil registration and legal certainty. The European Court had also recognised in the past that ensuring the reliability and consistency of civil registration and, more broadly, the requirement of legal certainty, were matters of public interest. In this context, entries in the civil registers had particular evidential value in the German legal system.

The right of a child to know his or her origins, as emphasised by the Federal Court of Justice, was also protected by the Convention and included, in particular, the right to establish details of one’s parents. In the case of O.H. and G.H., in addressing the child’s right to be brought up by both parents, the Federal Court of Justice identified as underlying that right, inter alia, the child’s interest in being able to establish and have registered, where appropriate, the paternity of his or her biological father. If the first applicant in that case were to be recorded as father in the register of births, the second applicant’s biological father could be recorded as father only on the condition that the second applicant first contested the first applicant’s paternity, and this was an option which the Federal Court of Justice found unacceptable for the child.

The Federal Court of Justice pointed out that the legal attachment of a child to its parents in accordance with their reproductive functions enabled the child to be attached in a stable and unchanging manner to a mother and a father whose identity would not evolve, even in the not merely theoretical scenario where the transgender parent might seek the annulment of a gender reclassification. In the Government’s submission, this legal attachment as a matter of principle was also intended to prevent surrogacy arrangements, which were prohibited in Germany – a prohibition which the Court had recognised as being in the legitimate public interest.

As regards the indication of the transgender parents’ former forenames in the register of births, according to the Federal Court of Justice, this was consistent with the above aim and also served to prevent the children from having to disclose their parents’ transgender identity.

In so far as the applicants had asserted that the right of a child to know his or her origins and the interest of the public authorities in keeping track of the biological reality of delivery or fertilisation by a transgender parent might be satisfied in a different manner, the Court reiterated that the choice of the means calculated to secure compliance with Article 8 in the sphere of the relations of individuals between themselves was in principle a matter that fell within the Contracting States’ margin of appreciation.

While the presentation of the birth certificates of each of the children by the transgender parents might reveal their transgender identities, the Federal Court of Justice indicated that it was possible to obtain a birth certificate without any mention of the parents. Only a limited number of persons, who would be generally aware of the transgender nature of the person concerned, were entitled to request a full copy of the birth certificate, and any other person had to show a legitimate interest in obtaining one. In addition, documents other than the full birth certificate which did not contain any indication of gender change could be used, to be presented to an employer for example, in order to prevent any risk of disclosing such information. Those precautions could serve to reduce the inconvenience to which transgender parents might be exposed.

Finally, the reference to a single transgender parent as the second applicant’s father (in O.H. and G.H.), in the absence of any mention of a mother on the birth certificate, might also raise questions as to the status of the transgender parent. Similarly, the replacement of the terms “mother” and “father” by “parent 1” and “parent 2” proposed by the applicants would not protect the applicants against disclosure either, since “parent 1” would remain associated with the person who had given birth to the child.

Accordingly, having regard, on the one hand, to the fact that the parent-child relationship between the transgender parents and their children had not in itself been called into question and to the limited number of scenarios which could lead, when the children submitted a birth certificate, to the disclosure of the transgender identity of the parents concerned, and, on the other, to the wide margin of appreciation afforded to the respondent State, the courts had struck a fair balance between the rights of the first applicant (in O.H. and G.H.) and those of the first and second applicants (in A.H. and Others), the interests of their children, considerations relating to the well-being of their children and the public interests.

Conclusion: no violation (unanimously).

Article 14 in conjunction with Article 8: Given that the attribution, in the birth register, of the role of mother to the person who gave birth to the child fell within the margin of appreciation of the States, the situation of the first applicant (in A.H. and Others) could not be compared to that of a woman who had given birth to a child. The decision to treat the first applicant in the same way as any person who contributed to the conception of a child by providing male gametes, namely to allow her to officially retain her biological link with the this applicant by acknowledging her paternity, also fell within the State’s margin of appreciation. The same conclusions applied to the second and third applicants in that case.

In the other case, the situation of the first applicant (in O.H. and G.H.) was not comparable to that of a father who had contributed male gametes to the reproduction. The same considerations applied to the child, whose situation was not comparable to that of children who had been adopted by homosexual couples or by a single male parent.

Conclusion: inadmissible (manifestly ill-founded).

(See also X, Y and Z v. the United Kingdom, 21830/93, 22 April 1997, Legal summary; Hämäläinen v. Finland [GC], 37359/09, 16 July 2014, Legal summary; Mandet v. France, 30955/12, 14 January 2016, Legal summary; A.P., Garçon and Nicot v. France, 79885/12 and al., 6 April 2017, Legal summary; Valdís Fjölnisdóttir and Others v. Iceland, 71552/17, 18 May 2021, Legal summary; Y. v. Poland, 74131/14, 17 February 2022, Legal summary)